Citizenship law and March of political parties: Forward March, Left, Right, About-Turn
This is Part I of the write-ups i on Citizenship law of India.
Since January 26, 1950, the citizenship has seen political parties marching forward, left, right and then taking about-turn. Till 2015, the Congress was marching forward, remaining on the right side of the Constitution and the law. Then in 2019, it took about-turn, confronting the NDA government. The small regional parties like RJD followed the Congress line. Once described as the BJP’s historical ally, Shiv Sena, wavered after joining the anti-BJP camp. It was on the right side (with BJP) in the Lok Sabha but turned left (walked out) in the Raja Sabha. Thereafter, it has taken complete about-turn. Most of the smaller political hardly played any role before 2019.
To understand the “Forward March, Left, Right, About-Turn”, let us first see how the citizenship law evolved in independent India.
Originally, the basis of citizenship was laid down in the Constitution that also empowered the Parliament to make citizenship laws in future. The first Citizenship Act was made in 1955. Subsequently, it was amended in 1986, 1992, 2003, 2005, 2015 and 2019.
Citizenship under the Constitution
Keeping in view the unprecedented situation created by the partition of the British India, the Constitution granted citizenship to
- Those domiciled in India (at the time of the commencement of the Constitution) and born in the Indian territory (after partition), or either of whose parents were born in the Indian territory or a person who has been ordinarily resident in the Indian territory for at least five years immediately preceding the commencement of the Constitution. (Article 5)
- Those persons who migrated from Pakistan to India prior to July 19, 1948, if either of parents or any of grandparents were born in undivided India. (Article 6)
- Those who migrated to India from Pakistan after the cut-off date of July 19, 1948, by registration after staying for six months (Article 6)
· Those who had migrated to the territory that became Pakistan after March 1, 1947, but returned to India under a permit for permanent resettlement. (Article 7)
Article 5 is very important as it accepted the principle of Jus Soli (literally, “right of soil”, that was part of English common law) i.e. grant of citizenship on the basis of birth in the country. However, starting with the first amendment in1986, it was gradually diluted due to the large scale entry of illegal immigrants.
Citizenship Act, 1955 (Congress was in power)
The original (or, principal) Citizenship Act (CA1955) granted automatic citizenship to every person born in India. A person born outside India, on or after January 26, 1950, was granted citizenship by descent provided either of his parents was an Indian citizen at the time of his birth. The Act also made provisions for citizenship by naturalisation under certain conditions which could be waived in case of “a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally”.
Citizenship (Amendment Act), 1986 (Congress was in power)
According to the “STATEMENT OF OBJECTS AND REASONS” of the Act, taking a serious view of the clandestine entry of persons of Indian origin from Bangladesh, Sri Lanka and some African countries, the government decided to amend the, CA 1955 and deny the automatic grant of citizenship to those born in India after January 26, 1950. A person born after the commencement of the 1986 Act (July 31, 1987), would become a citizen by birth only if at the time of his birth, either of his parents was an Indian citizen. Other persons residing in India for five years could apply for registration as citizens.
The CA 1955, as amended from time to time, provides that every person born in India on or after the 26th day of January, 1950, but before the 1st day of July, 1987, would become Indian citizen by virtue of birth; those born on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 would be Indian citizen if either of whose parents is a citizen of India at the time of his birth; and those born on or after the commencement of the Citizenship (Amendment) Act 2003, would get Indian citizenship when (i) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth.
This act that replaced the principle of principle of Jus Soli by the principle of jus sanguinis (“right of blood”, a Roman legal principle) in which citizenship is inherited through parents rather than birthplace, came very late. The Bangladeshis had been entering India illegally since 1971-72. By the time the act of 1986 came into force, millions of children of illegal immigrants had acquired citizenship by virtue of birth. As a special measure, the previous PM, Indira Gandhi, had made arrangements to settle the Hindu refugees from Bangladesh.
Those misleading Muslims living in India and inciting them to indulge in violent protests against CAA, NPR and NRC will not tell them that under the Citizenship Act, 1955, as amended from time to time, all those born in India between January 26, 1950 and July 31, 1987 automatically became Indian citizens, irrespective of the citizenship of either of their parents. Naturally, children of all those natural Indian citizens are also Indian citizens.
Citizenship (Amendment Act), 1992 (Congress was in power)
The Act had a limited objective, to substitute the word “father” by “either of his parents” in the CA, 1955 so as to eliminate any discrimination against women. (The CA1955 required that a child born outside India after the 26th day of January 1950, could be a citizen only if his father was a citizen of India at the time of his birth. The UN Gen assembly had adopted the Convention that the signatory states (India was one of the signatories) “shall grant women equal rights with men with respect to the nationality of the children.”)
Citizenship(Amendment) Act, 2003 and National Register of Citizenship (when NDA led by A. B. Vajpayee was in power)
The Act brought by the second NDA government led by A. B. Vajpayee could be considered a landmark. It had two objectives:
- To update the timeframe within the principle of “Jus Soli” would be applied and when the opposite principle of jus sanguinis would come in force (though these two terms are not mentioned in the Constitution or Citizenship Act of India).
- To authorise the Central government to prepare NRC and issue a national identity card to every citizen. The need for an NRC in India was felt after the Kargil war (May-July 1999). A Kargil Review Committee formed by the government recommended that a register of citizens and non-citizens was essential for national security. The government accepted the recommendation and amended the 1955 Act.
Home Minister L. K. Advani introduced the bill in the Lok Sabha on 7 May 2003. The Rajya Sabha decided to send it to Parliamentary Committee on Home Affairs headed by Pranab Mukherjee (a Congress MP of Rajya Sabha) and members included Kapil Sibal and Motilal Vora of Congress. It submitted its report (107th Report ) to the Rajya Sabha on December 12, 2003. Its notable recommendations were as follows:
“Indian citizenship should be granted to Bangladeshi and Pakistani minority refugees.”
“Citizenship should be granted only to Bangladesh minority refugees and not to refugees belonging to majority community.”
“Every citizen should be given a national identity card.”,
On December 18, 2003, the Rajya Sabha passed the Bill unanimously. The Lok Sabha passed it on December 22, Besides the Congress, RJD, AIADMK and some other parties also supported it. It received presidential assent in January 2004. is labelled “Act 6 of 2004”.
To achieve the first objective, the Act declared that
- every person born in India on or after January 26, 1950, but before July 1, 1987, would be Indian citizen by virtue of birth in the country;
- but anyone born between July 1, 1987, and the date of commencement of the 2003 Act, could become a citizen only if either of his parents was an Indian citizen at the time of his birth; and
- a child born in India after the commencement of the 2003 Act could become a citizen only if one of his parents was a citizen of India and the other was not an illegal migrant at the time of his birth. (In other words, a child whose father or mother was an illegal migrant could not be an Indian citizen.)
To achieve the second objective, the Act added Section 14A to the CA1955 that provides that “the Central Government may “compulsorily register every citizen of India”, “maintain a National Register of Indian Citizens” and “issue a national identity card to him.” The Act requires the government to carry out “throughout the country a house-to-house enumeration for collection of specified particulars relating to each family and individual, residing in a local area including the Citizenship status.”
Several countries in the world maintain registers to know each and every person – citizen or non-citizen living with permission or without permission – within the boundaries of the country The US Social Security number was started to track individuals. The US Social Security Administration has introduced several features to protect the country from the terrorists. The Canadian government maintains records of all individuals, citizens as well as non-citizens, about their educational qualification, job, properties owned by them, whether they live in their own houses or in rented houses, etc. A few years back Indonesia also prepared a register of its citizens and gave a multipurpose identification number to every citizen. It replaced 18 different identification numbers. China maintains a complete register of all its citizens. The government of Australia maintains complete record of all the permanent residents: their date of birth, educational qualification, jobs, record of crime, etc. The past record of anyone who commits crime can be gathered in less than 20 minutes.
The way the Bill was drafted and finally made an Act raises some uncomfortable questions:
- Despite the fact that provision for NRC was made a law in the name of national security, the provision was not made mandatory. The insertion of the word “may” before “compulsorily” is very significant as it does not make the preparation of NRC mandatory. It means that as and when the government decides (by executive order) to prepare NRC registration will be compulsory; no citizen will have the right to refuse.
- It is a matter of research why and at whose order the Vajpayee government did not make NRC mandatory. Of course, the Vajpayee Government had no time to start working on it. It went out of power within a few months, due to defeat in the general election. The stand of the UPA government headed by a Congressman is discussed later in the article.
- It is also a matter of research why the Vajpayee government did not incorporate in the law the recommendations of the Parliamentary Committee regarding grant of citizenship to the Hindu refugees from Pakistan and Bangladesh. During discussions on the bill in the Rajya Sabha, Dr Manmohan Singh, the then Congress Party leader in the Rajya Sabha strongly pleaded for grant of citizenship to the Hindu refugees from Bangladesh. Had the Vajpayee government done so, there would not have been so much agitation today.
- Surprisingly, the Citizenship Rules, 2003, were framed and notified on this number 10, i.e. even before the Parliament has passed the Bill.
According to the Citizenship Rules, 2003, NRC shall be divided into several parts i.e. State Registers, District Registers, Sub-District Registers and Local Registers. Every register shall be a record of (i) Name; (ii) Father’s name; (iii) Mother’s name; (iv) Sex; (u) Date of birth; (vi) Place of birth; (vii) Residential address (present and permanent); (viii) Marital status — If every married, name of the spouse; (ix) Visible identification mark; (x) Date of registration of Citizen; (xi) Serial number of registration; and (xii) National Identity Number.
First, a population register, from the local to the state level, shall be prepared and the register of citizens shall contain details of persons after due verification made by the local registrar from the population register.
During the verification process, particulars of such individuals, whose Citizenship is doubtful, shall be entered by the Local Registrar with an appropriate remark in the Population Register for further enquiry and in case of doubtful Citizenship, the individual or the family shall be informed in a specified proforma immediately after the verification process is over.
Every person or family shall be given an opportunity of being heard by the sub-district or Taluk Registrar of Citizen Registration before a final decision is taken to include or to exclude their particulars in the National Register of Indian Citizens.
The Act read with the Rules authorise the central government to carry throughout the country a house-to-house enumeration for collection of specified particulars to each family and individual, residing in a local area including the Citizenship status. The rules make it compulsory for the Central Government, State Governments and local bodies to assist the Registrar General of Citizen Registration or any person authorized by him in this behalf, in preparation of the database relating to each family and every person, and in implementing the provisions of these rules. (This provision is a tribute to the Indian federal system but highly objectionable to the non-BJP governments.)
Even after the presidential assent of the bill and framing of the rules, it was for the government to decide a date by which the population register shall be prepared.
Citizenship (Amendment) Acts, 2005 and 2015
The Indian Constitution does not allow dual citizenship. Through these Amendment Acts certain facilities have been given to persons of Indian origin who are citizens of other countries (except Pakistan and Bangladesh) to stay indefinitely and work in India.
Citizenship (Amendment) Act, 2019
What the second NDA government (led by Vajpayee) failed to do regarding grant of citizenship to the minority refugees, the fourth NDA government (since May 2019) led by Narendra Modi has done and that too more liberally. The CAA, 2019, provides citizenship to the religious minorities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) of Afghanistan, Bangladesh and Pakistan who were persecuted because of their religion and came to India as refugees seeking asylum. All those who have been living in India since December 31, 2014, or earlier and have been exempted from the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920 by the central government will get citizenship. The bill was originally introduced in the Lok Sabha on July 15, 2016. On July 31 it was referred to the joint select committee of the Parliament. After consulting several stakeholders over a period of more than two years, the committee submitted its report to the Lok Sabha on January 7, 2019.
The Bill was passed after a lot of firework in both Houses of the Parliament. Congress, SP, DMK, TMC, RJD, BSP, Muslim parties, communists, Shiv Sena (in Rsjys Ssbha), etc strongly opposed the Bill. Muslim leader Owaisi tore a copy of the Bill in the Lok Sabha. Protests started outside the Parliament and turned violent (More in Part II).
The Act fulfills the assurances given from time to time to the religious minorities that they would be welcomed in India. Recently, in an interview to a TV channel, Kerala Governor Arif Mohammad Khan recalled assurances given since 1947:
(a) M. K. Gandhi had said that Hindus and Sikhs who did not want to live in Pakistan had right to come to India and the Government of India was duty-bound to provide them citizenship, employment and facilities to live a comfortable life.
(b) In a resolution adopted on November 25, 1947, the All India Congress Committee clearly declared that “The Congress is duty-bound to provide complete security to the non-Muslims of Pakistan, who have crossed the boundary or will cross to protect their lives and honour. We will accept these people who flee from Pakistan.”
(c) Nehru, who on April 8 signed the famous Nehru-Liaqat Pact to safeguard religious minorities in India and Pakistan, had said, ‘I want to make it clear that they belong to us, and shall belong to us. Their welfare is uppermost on our minds. I want to assure the Hindus and Sikhs of Pakistan that they are free to come here. Whenever they choose to come to India, we shall accept them.’
(d) We have noted earlier that in 2003, as members of a Parliamentary Committee, several Congress leaders had openly pleaded for grant of citizenship to the Hindu refugees and specifically opposed the grant of citizenship to Muslims of Bangladesh.
India always honoured its commitment to protect minorities. The Muslim population in India has been steadily increasing whereas the population of Hindus in Pakistan has declined from 15% to less than 2%. Most of the Hindus and Sikhs who stayed in Pakistan after partition and were persecuted on account of their religion were poor and Dalits.
In his previous avatar as Rajasthan Chief Minister, Ashok Gehlot had also requested the UPA Government to grant citizenship to the refugees from Pakistan camping in the state.
During the UPA rule, twice the Hindu (only Hindu) refugees were granted citizenship by executive orders to the local authorities. Thereafter also not only Hindus but Sikhs and other religious minorities came as refugees in a large number. The CAA 2019 grants citizenship to all those who came before December 31, 2014. It still does not grant citizenship to those who came after that cut-off date. Nor does it open a permanent door to all the religious minorities in those countries to enter India and acquire citizenship.
Keeping in view the sentiments of the tribal people, it is not applicable in the tribal area of Assam, Meghalaya, Mizoram or Tripura In other words, the refugees settled in those tribal areas will not be granted citizenship as long as they are there.
NRC in Assam
The NRC being prepared in Assam on the order of the Supreme Court is a delayed follow up action proposed in “Assam Accord” signed on August 15, 1985, by the then Prime Minister Rajiv Gandhi and the leader of the All Assam Students’ Union. The details are not relevant here.
National Population Register and the National Register of citizenship
Whatever the Congress may say today against the NPR, the credit for preparation of the NPR goes entirely to the UPA government headed by a congressman Dr Manmohan Singh. The first order for the purpose was issued on November 9, 2009, and again on March 15, 2010, when P Chidambaram was Home Minister. In an interview to a journalist on Jan 12, 2009, Chidambaram had said that India “should have a good NPR by 2011-12.” About the need for NPR, he said, “this is one important instrument to check porous borders, illegal immigration causing unexpected demographic changes in the border districts and causing a lot of angst amongst native populations – as in Assam, West Bengal.” The 2010 order also stated that the NPR would be compiled “between the 1st April 2010 and 30th September.” After it was prepared, it was updated in 2015. (Was it completed?)
In reply to a question in the Lok Sabha on August 28, 2012, then minister of state for home Jitendra Singh had stated, “The National Population Register is the first step towards the creation of a National Register of Indian Citizens. A resident can be part of this Citizens Register only after thorough verification of her/ his citizenship status”.
Note that the list of information to be collected for the purpose of the census is much longer (the details could be found on (http://www.censusindia.gov.in/AboutUs/contactus/Contactus.html) than the list prescribed in the 2003 rules for the NPR (NRC is a subset of NPR). The major differences are that for the NRC/NPR, though not for the purpose of the census, visible identification mark, date of registration of citizen, a serial number of registration and National Identity Number are also required.
On December 23, 2019, the Union Cabinet decided to update the NPR originally prepared by the UPA government. Even before that, in a Gazette notification dated July 31, 2019, it was stated that the fieldwork for house to house enumeration throughout the country except for Assam for collection of information relating to all persons who are usually residing within the jurisdiction of Local Registrar shall be undertaken between the 1st day of April 2020 to 30th September 2020.”
As the UPA Minister of State for Home Affairs has told the Parliament in 2012 that NRC would follow the NPR, during the debates in the Parliament, Home Minister Amit Shah has also stated that the NRC would follow the NPR.
After the nationwide agitations against the CAA 2019, NPR and NRC, in an attempt to modify the agitators, the Prime Minister publicly stated that so far the government has not even discussed the issue of NRC. The July 31 about the NPR is also no longer available on the website of the Ministry of Home affairs.
The agitation is now more than one month old though not as violent as it was in its early phase. Since the non-BJP government declared that they would not implement the CAA 2019 nor will they allow compilation of the NRC/NPR, we have no idea how the central government will prepare the NPR.
However, after perusal of the history of the amendments of the citizenship law, what we know is that the successive governments did not take the matter of national security seriously. The Bangladeshis had been entering India illegally since 1970-71 but the principle of jus sanguinis (“right of blood”) in which citizenship is inherited through parents rather than birthplace, was adopted only in 1986. Meanwhile, millions of the children born to the illegal immigrants has become Indian citizens and so are their children.
Similarly, despite the recommendation of an expert committee that in the interest of national security. the country needed NRC, the Vajpayee government did not make it mandatory in the Citizenship Amendment Act, 2003.
Another proof of failure or carelessness is non-implementation of the unequivocal recommendation of a Rajya Sabha committee headed by Pranab Mukherjee, a senior Congress leader and comprising other Congress leaders, to grant citizenship to the Hindu refugees from Bangladesh and to deny citizenship to the illegal Muslim immigrants from the same country in 2003 Act.
Had the Vajpayee government granted citizenship to the Hindu refugees from Bangladesh and made the preparation of the NCR mandatory in 2003 when there was full support of the Congress and other political parties, there would have been no agitations as we were witnessing today.
Those misleading Indian Muslims and inciting them to indulge in violence in protest against NPR and NRC will not tell them that even if the original documentary proofs of birth or citizenship are missing, there are several alternatives to collect proof. The government of India has yet to finalise the list of these alternatives.
Meanwhile, the BJP ruled states are going ahead with the implementation of the CAA 2019, but the non-BJP ruled states remain defiant in flagrant violation of the Constitution of India.
Part II summarises arguments for and against CAA of 2019, NPR and NRC. The conclusion is that acceptance of the demand of those opposing CCA, NPR and NRC will have disastrous consequences. https://www.devendranarain.com/consequences-of-…ay-be-disastrous/
In Part III, the issues discussed are (a) whether the battle is legal or political and (b) how long it is likely to last. https://www.devendranarain.com/the-battle-over-…itical-not-legal/
In Part IV, I raised and tried to answer a question: Why protests against CAA, NPR and NRC now? Why not earlier? https://www.devendranarain.com/why-protests-aga…-npr-and-nrc-now/
Part V – Lawmakers and bureaucrats messed up citizenship-related issues – questions the wisdom of the lawmakers of the ruling NDA who unnecessarily amended the Citizenship Act in 1949 and did not change the wordings of the Amendment At in 2019 to take the steam out of the protests. https://www.devendranarain.com/lawmakers-and-bu…p-related-issues/
Part VI is about how conspirators to intellectuals have made common cause against NPR